Section 311 of the Cr.P.C. allows courts to recall witnesses essential for a just decision, emphasizing that oversights in prosecution do not constitute irreparable lacunae. Judicial discretion must be exercised with caution.

JUDGMENT

1. Heard Mr. S. Kar Bhowmik, learned senior counsel assisted by Mr. S. Bol, learned counsel and Mr. R. Datta, learned Public Prosecutor appearing for the petitioner. Also heard Mr. P. K. Biswas, learned senior counsel assisted by Mr. P. Majumder and Mr. A. K. Banerjee, learned counsel appearing for the respondents.

2. By means of filing this revision petition under Sectin-397 read with Section-401 of Cr. P.C. challenging the order dated 27.06.2022 passed by the learned Sessions Judge, West Tripura, Agartala in connection with ST(T-1) 103 of 2019 allowing the 311 Cr. P.C. petition filed by the accused-persons at the stage of 313 Cr. P.C.

3. The facts in brief are that the instant petition has been filed by the State of Tripura, challenging the order dated 27.06.2022 passed by the learned Sessions Judge, West Tripura, Agartala in the above mentioned case allowing the 311 Cr.P.C. petition filed by the accused-persons at the stage of 313 Cr.P.C. Vide order dated 27.06.2022, the learned Court below allowed the said petition without application of mind for which the same is challenged before this Court.

4. On 23.05.2022 the prosecution closed its evidence and the next date was fixed on 03.06.2022 for examination of the accused persons under Section-313 of Cr. P.C. On 03.06.2022, on behalf of the accused-persons conjointly filed a petition under Section-311 of Cr. P.C. with a prayer to recall and re-examine PW-2, Sri Kishore Kumar Paul, PW-10, Smt. Mitra Das and PW-54, the 1st I.O. S.I. Sumanullah Kazi on the pretext that in his examination in chief PW-2 stated 'Sukanta Biswas lied Budhisatta down on the ground and sat himself on his chest and assaulted Budhisatta severely and Sumit Chowdhury and Sumit Banik also joined Sukanta and started assaulting Budhisatta.' It is stated in the petition that the said statement is missing from the statement recorded under Section 161 of Cr. P.C. of PW-2, recorded by PW-54 and also in the statement of the said witness recorded under Section-164 Cr. P.C. by the than J.M.(1st Class) PW-10 Smt. Mitra Das and thus wanted to contradict the aforesaid witness with the said statement after their recall.

5. Subsequently, the matter was heard at length and by the impugned order dated 27.06.2022 the learned Court below allowing the 311 Cr. P.C. petition filed by the defence at the state of 313 Cr. P.C. Being aggrieved by and dissatisfied with the order dated 27.06.2022 passed by the Court below this present revision petition has been filed.

6. Learned special P.P. appearing for the petitioner has submitted that the impugned order dated 27.06.2022 passed by the learned Court below is neither legal nor proper or correct for which the same is liable to be quashed. The impugned order dated 27.06.2022 passed by the Court below is bad in law and in facts for which the same is not sustainable. He has further argued that there is total non-application of mind on the part of the Court below since in a mechanical manner the petition under Section-311 of Cr.P.C. was filed.

7. The law is trite that application of Section-311 of Cr. P.C. cannot be used to fill up the lacuna also the examination of the witnesses cannot be an endless process. In the present case PW-2 is the eye witness of the gruesome murder and PW-10 is the Judicial Magistrate who recorded the statement under Section-164(5) of Cr. P.C. of the aforesaid witnesses and PW-54 is the 1st Investigating Officer. The statement recorded under Section-164(5) Cr. P.C. is on record and the same has been marked as Exbt.2(i) to 2(iv). Since the statement has been exhibited and is on record, calling of the aforesaid 3 witnesses for the purpose of contradiction will not serve any practical purpose and has only delayed the trial.

8. The examination-in-chief of PW-2 was recorded on 09.03.2021 and subsequently, he was cross-examined on 24.03.2021 as per the order of this Court dated 19.03.2021 in Crl. Petn. No.11 of 2021 and thereafter he was again called and examined on 2